In Klusova v London Borough of Hounslow the employee in question was dismissed when her immigration leave to remain in the UK expired. The employer argued that it was a fair dismissal - relying on the rarely used s 98(2)(d) of the Employment Rights Act. As she was an illegal ‘overstayer’, it would have been ‘a contravention of a statutory duty or enactment’ for her to continue to work in the position which she held.
Unfortunately for the employers the evidence was that, under immigration law, if, when an individual’s leave to remain in the UK expires, they have already made an application to the Home Office for an extension to it, then it is not illegal for that individual to continue to work in the UK until that application has been decided upon by the Home Office.
However, the employers did succeed in their alternative argument that, as they dismissed through a genuine but mistaken belief that it would have been illegal to continue to employ her, this could count as 'some other reason justifying dismissal' to make an otherwise unfair dismissal fair.
Nevertheless, the claimant still succeeded to a certain extent because the employer had failed to follow the statutory procedures and so the dismissal was automatically procedurally unfair.
Points to note:
Where s 98(2)(d) applies, the employer does not have to use the statutory dismissal procedures before dismissing the employee (see Reg. 4(1)(f) of the Dispute Resolution Regulations). However, to avoid making the mistake of the employer in Klusova, it may be safer to use the statutory procedures in any event.
The penalties for employing illegal workers are severe – and about to get more so. The Home Office has recently said that from February 2008, if an employer negligently employs an illegal worker it could face a fine of up to £10,000. If the employer does so knowingly, it could face an unlimited fine or its responsible officers could even face imprisonment.